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Wednesday, August 29, 2012

Texas should ban warrantless GPS tracking

Most folks reading this blog surely own a cell-phone and most of those - certainly all the new "smart phones" - include a GPS locator. So tell me: When you purchased that device, did you intend to give police tacit consent to track your movements without a warrant? A recent federal court decision assumes you did. The Washington Post ran a story last week ("GPS technology finding its way into court," Aug. 23)

The rapid spread of cellphones with
GPS technology has allowed police to track suspects with unprecedented
precision — even as they commit crimes. But the legal fight is only now
heating up, with prosecutors and privacy activists sparring over rules
governing the use of powerful new investigative tools.

The U.S. Court of Appeals for the 6th Circuit stirred the debate last week when it supported police use of a drug runner’s cellphone signals
to locate him — and more than 1,000 pounds of marijuana — at a Texas
rest stop. The court decided that the suspect “did not have a reasonable
expectation of privacy” over location data from his cellphone and that
police were free to collect it over several days, even without a search
warrant.

Here's the opinion (pdf), which came out of the 6th Court of Appeals, not the 5th, which governs Texas, though the GPS tracking happened here. The gist is that GPS tracking of a cell phone is simply gathering information in the public domain akin to physically watching someone walk down the street. Though the US Supreme Court held in US v. Jones that a warrant is needed to place a tracking device on someone's car, the 6th Court of Appeals distinguished GPS in your phone from that case by claiming cell phone users "voluntarily" invitegovernment tracking simply by owning a phone that emits such a signal:

the Government never had physical contact with Skinner’s cell phone; he obtained it, GPS technology and all, and could not object to its presence.

Because authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone.

Even before US v. Jones, Texas law required a court order for police to place a mobile tracking device on your vehicle. But Texas cops could conceivably track the GPS signal from your phone (Fort Worth PD recently purchased such a system) without one, since it's not something police installed but, according to the 6th Court, information you're "voluntarily" giving out in a public space. In light of this ruling, the 83rd Texas Legislature should amend that statute to require judicial oversight for GPS tracking as well.

7 comments:

There is a technical fix for this problem. Sell cell phones without GPS tracking devices. Has Uncle Nanny already cutoff that possibility by requiring cell phones to have GPS installed? Then someone needs to figure out how to hack those phones and disable the device. And publish that info.

"Though the US Supreme Court held in US v. Jones that a warrant is needed to place a tracking device on someone's car,"

Incorrect. The Supreme Court held the application was a search. It did not specify that law enforcement officers require a warrant. There is a grey area in between warrant and warrant-less searches. That argument was not pushed by Jones' counsel and therefore not ruled on by the court. Many agencies in Texas have successfully obtained tracking orders without any modification since the SCOTUS ruling. As for GPS tracking in phones, if you don't want your signal tracked turn off your GPS signal. If you do this you will still leave footprints based on which cell tower you are connected to.

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